MPAA Says It Has No Way Of Measuring The Damage From Piracy (But Wants Damages Anyway)

If you read stories about movie piracy, you’ll hear the industry throw around some very specific numbers about how much money is lost to pirates by the U.S. movie business every year, but when it comes time to actually detail those damages in court, the MPAA says actual piracy damages “are not capable of meaningful measurement.”

TorrentFreak reports on a recent federal court filing by the MPAA in its lawsuit against a BitTorrent search engine.

The search engine would like to make the argument that piracy is not hurting the movie industry and intends to present evidence to support this contention. But the MPAA has requested that this issue be excluded from the trial because measuring the actual economic impact of piracy on the movie industry is too complex.

“To permit consideration of actual damages under these circumstances would be perverse – and particularly unfair – given that Plaintiffs elected statutory damages precisely because their actual damages are not capable of meaningful measurement,” reads the filing.

The MPAA also states that this is all a non-issue, saying that the search engine “should not be permitted to exploit the inherent difficulty of proving actual damages in a case such as this as a basis for lowering the statutory damages award, especially when the very purpose of statutory damages was to provide a remedy that is not dependent on proof of actual damages.”

The search engine says it is just seeking a balanced judgement, rather than the $600 million in statutory damages it currently faces for thousands of alleged violations.

Allowing both sides to present evidence of the actual impact of piracy (or lack thereof) would, according to the search engine, “allow the jury to infer that Plaintiffs have not suffered any actual damages, which can be contrasted with the financial condition of Defendants in the jury fashioning an appropriate award.”

The defendant claims that if the movie industry continued to make uninterrupted profits with no decline in revenue from piracy, “the jury could conclude that it would be unjust and a windfall to award Plaintiffs anything more than the near $3 million statutory minimum.”

The court has questioned why MPAA is seeking $600 million in damages when it admits that the defendant would be bankrupted with a judgement of only $2 million to $5 million.

“So why are you making such a fetish about 2,000 or 3,000 or 10,000 or 100 copyrights?” asked the court.

To which an MPAA lawyer responded that “the extraordinarily important purpose is to…send a message to other would-be infringers.”

At this, the court asked, “But if you strip him of all his assets — and you’re suggesting that a much lesser number of copyright infringements would accomplish that, where is the deterrence by telling the world that you took someone’s resources away because of illegal conduct entirely or 50 times over?”